"A person wholly without imagination is hard to imagine." Anon.

The general purpose of this course is to study strategies for effective pretrial fact investigation. The premise of this examination of investigation is that effective pretrial investigation requires not only imagination, but also careful marshaling of evidence and careful organization of thinking about evidence. The more particularized premise of the course is that effective investigation frequently either requires or benefits from the application of a variety of distinct marshaling and analytical methods, including methods such as the construction of event chronologies, the formation of scenarios, orderly assessment of the credibility of testimonial evidence, and the marshaling of evidence on the basis of legal rules and their elements. One of the aims of the course is to acquaint students with a tool kit of such methods for marshaling and organizing evidence.

Participants in the course are expected to conduct investigations. Members of the course are not given simulated ("canned") investigation problems. Participants in the course are instead asked to investigate real-world situations and problems-real-world problems whose "solution" is unknown to the instructor. This insistence on "real" rather than "fake" problems is important because an essential feature of the investigative process is the investigator's ignorance of unexamined events and matters. The process of investigation is, in a very real and important sense, a process of discovery.

The terrain traversed by this course is vast, but not unlimited. Furthermore, the course does not purport to resolve -- or even to identify -- all puzzles that do fall within the course's subject matter (general strategies of investigation).

The course has the following limitations:

The course does not attempt to examine the intricate legal rules that govern pretrial fact investigation in civil and criminal cases. So if you want to learn about matters such as the legal rules that govern the taking of depositions or the rules governing preliminary hearings in criminal cases, you are in the wrong course! Compare, e.g., Thomas A. Mauet, PRETRIAL (4th ed., 1999).





Investigators use an enormous array of specialized knowledge, tools, and "tricks." For example, some investigators know a great deal about the characteristics of blood spatter, automobile tires, skid marks, air turbulence, and innumerable other matters of this sort. These sorts of matters are obviously important for effective investigation, but this course does not attempt to study them. Effective investigators also become acquainted with various kinds of technological tools and collections of information and databases. For example, many investigators learn to use medical databases, telephone records, bank records, LEXIS, and so on. Identifying such collections of data and knowing how to use them are also obviously important in many investigations. This course, however, does not attempt to deal with such matters. The emphasis here is on investigative strategies that are in principle applicable to any kind of case or investigative problem. Compare, e.g., Martin Dean & Anne Kemp, MANAGING LITIGATION WITH COMPUTERS (2d ed., 1998).





While this course does attempt to identify general methods of organizing information and evidence that are likely to be useful in investigation, your instructor, supervisor, collaborator, and fellow student -- viz., Tillers -- does not claim that he has identified all pertinent marshaling or analytical methods. He also does not claim that he has correctly discerned all of the useful or essential properties or characteristics of the marshaling and analytical strategies that he thinks he (with the help of many other people) has managed to identify.

As already noted, this course in investigation does demand that course participants actually engage in investigative activity: participants in the course are not allowed to just think about the characteristics of effective investigation, but are required to actually do investigation. Nonetheless, this course is in certain ways more about the theory of investigation than about the practice of investigation. The supervisor (Tillers) does not claim to know all there is to know about fact investigation and discovery. He does not even claim to be particularly proficient in the art and science of investigation and discovery. To be sure, the course supervisor (Tillers) does try to see to it that the participants in the course -- his collaborators in the study of investigation -- conduct investigations as effectively as possible. But Tillers' motivation for putting the members of the course through their practical paces is in part theoretical: Tillers believes (for the reasons given elsewhere on this web site) that, as a general matter, students are in a position to understand the nature of investigation only if they do real-world investigations of important problems.

In Tillers' eyes, the fundamental measure of

(i) his success or failure as the course supervisor, and

(ii) the success or failure of his student collaborators

is the sophistication of the students' theoretical analysis of the characteristics of general strategies for marshaling evidence and information in pretrial fact investigation. The appropriate measure of success or failure in this course is not, fundamentally, the ability or inability of the course participants to acquire hoped-for evidence or their ability or inability to reach or substantiate "favorable" results. Tillers believes that if course participants have used promising or sound strategies in their investigations, those participants have done a "good job" -- even if [as often happens] luck or circumstances conspire to prevent a sound investigative plan from producing expected or favorable evidentiary results. (It does not follow, of course, that every investigative strategy that an investigator happens to employ is sound.)